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This is the document that says Australia’s Deputy PM has dual citizenship…

EDIT: Note this article was written on 28 July 2017 – more than two weeks before it hit mainstream media on 14 August. So “today” is 28 July, not today, if you see what I mean!—————–

The bizarre Section 44 controversy has already claimed a few victims and there will no doubt be more to come. One name that has been surprisingly absent from the discussion – until today – is that of Deputy Prime Minister Barnaby Joyce, whose father was from New Zealand.

After I flagged up the possibility of ‘citizenship by descent’ for Barnaby Joyce (and One Nation Senator Malcolm Roberts) over a week ago, The Australian has finally cottoned onto it today, including a response from Joyce:

Mr Joyce’s spokesman said he was not a dual citizen and had establis­hed that “many years prior to entering parliament”.

The NZ Department of Internal Affairs­ (DIA) seems to back him up, apparently telling the newspaper that a child born in Aust­ralia to a NZ parent needs to ‘apply’ to be a citizen by descent.

Here’s the problem – both Joyce and the spokesperson from NZ DIA seem to be wrong.

The law in black and white…

“Subject to the provisions of this section, a person born after the commencement of this Act shall by descent be a New Zealand citizen by descent if his father was a New Zealand citizen at the time of his birth”

The 1948 law has been replaced by other citizenship Acts and amendments since, though nothing revokes this clause (in fact it has been expanded it to cover children of NZ mothers too).

The official advice from NZ DIA also seems to disagree with its spokesperson quoted in The Australian. This is from its website today:

So unless Barnaby Joyce has renounced his NZ citizenship – which he has made no mention of to date – then he is a NZ citizen. And therefore ineligible to sit in Parliament under the current rules.

So should he resign?

In short, no. But he should come clean about it and send the case to the High Court. The fact that an elected representative who has never actively sought dual citizenship nor registered it is ineligible to sit in Parliament under the Australian constitution is pretty stupid, in my opinion, and the law needs to be changed (as it probably will be after all of this nonsense). The Joyce case just goes to show how over-reaching and outdated Section 44 is.

Additionally (and more importantly than my personal opinion!), if the High Court looks at the Joyce case (and other similar cases) it may decide that parliamentarians must ‘register’ their citizenship by descent in order for it to be fully recognised in Australian law. There was some previous discussion of this in the 1992 Sykes v Cleary case, which is a fascinating read for political and constitutional wonks. The big question is how far Australia goes in recognising ‘foreign’ citizenship law it has no control over. The extreme example being that North Korea* could, in theory, bestow citizenship on Malcolm Turnbull as part of a maniacal plot to bring down the Australian Government, without the PM’s knowledge or permission.

Nonetheless Barnaby Joyce should admit there is an issue here and deal with it formally instead of pretending it doesn’t exist.

* or perhaps more likely Donald Trump these days

***UPDATE 14 August 2017***

I emailed the NZ Department of Internal Affairs­ (DIA) on 3/8/17 to ask them to clarify their position on this, specifically in regards to whether somebody born in 1969 with a NZ father is automatically a NZ citizen. Despite several emails back and forth, I have yet to receive any answers to my questions. I will publish a response on this blog, if and when I get it.

***UPDATE 14 August 2017***

Just after the last update I found out Barnaby has now referred himself to the High Court and is apparently “shocked” to find out he may be a dual citizen, which is strange given he was asked about it a couple of weeks ago by a Sky journalist as a result of this blogpost, and lots of people have also contacted him on Twitter about it.

I note that he was contacted by the NZ Government last Thursday to raise it with him – the day after I contacted NZ DIA to ask them to clarify the situation (incidentally, still no reply from them to my questions!).

I think that the law applies as it was then. Frequently, when considering the application of law, one is required to consider the law that then existed. As we are discussing something that was potentially bestowed on Mr Joyce at birth, the law to consider is the law that applied at his birth.

In effect as people are interpreting s.44 now Australians are subject to the arbitrary decisions of foreign powers whilst they are here in Australia!

As the article points out, if N. Korea just unilaterally declares us all citizens then we are, by current interpretation, all bound to accept their decision and be disbarred from parliamentary careers!

That’s silly. I would not expect that the founding fathers intended this interpretation.

Just because another country recognises you as a citizen of theirs should have no bearing on your Australian citizenship and obligations as long as you renounce any other citizenship and swear loyalty to Australia only.

That is exactly the case jtveg, the candidates have to renounce their other citizenship, but even if they are in the process of doing so and it isn’t completed, they can get thrown out as did happen to Heather Hill in 1999. The other small problem it that the British Act Australia uses as its Constitution requires people to swear allegiance to the Queen Victoria and not to the Australian people.
Although the Oath in the British Act hasn’t been officially amended, it is taken as gospel that the oath applies to Queen Victoria’s heirs and successors. That is actually stated in Clause 2 of the British Act, hence, this represents a verification that Clause 9, titled, The Constitution of the Commonwealth of Australia…., cannot be treated independently of the preceding 8 Clauses.

The intent is long lost. The legislation effectively argues that people who belatedly discover they are citizens by descent may have conflicted loyalties towards Australia merely by having citizenship they didn’t choose, didn’t know about and haven’t activated. Tony Abbott knew about his citizenship and formally renounced it (we’re told) yet few would argue he remains an anglophile of the first order.

I was 25 when I discovered I’d been a British citizen since my birth in Sydney Australia – when planning my first ever visit to Britain. If I hadn’t travelled then, I might not have tripped over this information for many more years.

If only it was that simple. To become a New Zealand citizen by descent you must first apply and then be able to prove it. If you cannot prove it conclusively, the application will be denied. Therefore, if the parent has passed, a DNA test would be required.

The law has changed several times.I know this because I and my former husband were born in NZ, and came to Australia as such with two children who required no passport. They were hand-written on ours. Aged under two (born in 1982 and 1983), one of them recently obtained a NZ Passport simply by filling in a form for a passport, and sending money. The other is an Australian citizen.The next two born in Australia in 1984 and 1986, are by law at that time, Australian citizens.The next three born in Australia in 1988 1990 and 1992(under a changed Australian law), are NZ citizens, and required significant documentation to gain Australian passports. Clear as …mud? 😉

The issue of registration is irrelevant, as 44i, quite rightly, applies not only to registered foreign citizens but also those entitled to be so (those with unexercised birthrights etc). However, if Joyce’s case went to the high court, and no one could prove any particular personal bond or favouritism to NZ by Joyce, then the court might rule in his favour, even though technically to do so would be against the constitution.

The North Korea thing is a silly fantasy. Besides, if this ever happened it would be entirely retrospective (which courts hate) and would also be outside the spirit of the 44i law – any legal expert will tell you the spirit of the law carries weight, not just the letter of the law. The fact that those who hate 44i have to resort to such ridiculous examples is reassuring. I’m sure you could undermine virtually the entire constitution by coming up with ridiculous hypotheticals.

I love the way Labor MPs are hounded out of parliament by the media, but the same legislation is described as ‘outmoded’ and ‘Needs to be changed’ by media and commenting No BJ should not stand down. No bias there then?

Yes, this is an interesting legal anomaly, but I am far more interested in the actual illegality and corruption that Barnaby Joyce has practically admitted to in facilitating water theft from the second largest river catchment in Australia.

There is so much confusion over the citizenship issue that the only way to resolve it is to call a fresh election so that all politicians can resolve their citizen status. This would allow the Australian people an opportunity to elect only 100% Australians to the Federal Parliament. A foundation stone of our Aussie democracy is that we are all equal yet 2 senators have been forced to resign while other aren’t. A fresh election would clear the air and anyone caught after that should be dealt with under existing law.

Sorry clause 8 of the Commonwealth Constitution Act says that New Zealand is a STATE of the Commonwealth of Australia and that is enshrined law not able to be repealed or amended by any Australian legislator.

“Subject to the provisions of this section”… and you COMPLETELY ignore those words. Utter fail when it comes to interpreting legislation. Seriously, you’ve thrown up subsection (1) and said nothing about however many other subsections there were after that which would have contained all the situations where such a person is NOT a New Zealand citizen.

Publishing the whole legislation here would probably be a bit tedious for readers but link is there so you can read the subsection clauses for yourself. As you will see, neither of them apply to Joyce’s situation:

It only becomes an issue if you want to stand for Parliament…there’s too many people that think the Constitution should be changed to accommodate this dual citizenship fiasco….when in reality, if your going to stand for Parliament, and you don’t do your checks diligently, do you really want those people in charge of your military….??…wake up and smell the coffee,if your not smart enough to do your homework and only have allegiance to Australia, then Australia neither wants or needs you as a Parliamentarian……END OF STORY…..

Actually, it\s a smaller subset than those who want to stand for Parliament. You have and indeed should have every right to stand as a protest candidate without renouncing all your citizenships. A good three quarters of political candidates know they have literally zero chance of winning. It’s only those who actually want to get themsleves elected who are the problem.

Why is S44(i) even in the Constitution when the Queen of Australia is a British citizen – and as defined by the High Court therefore the Sovereign of a foreign power. All Senators and MPs swear under Oath or Allegiance to be ”faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors according to Law”. Given that ‘Her heirs and successors’ will always be British citizens, prima facie, taking the Oath or swearing the Allegiance is acknowledgement of allegiance, obedience or adherence to a foreign power!